DQ's employment team is heralded by leading law directory Legal 500 as "one of the strongest employment teams on the Island" so it is no surprise that once again the team has been asked to contribute the Isle of Man chapter to the International Comparative Legal Guide ("ICLG") for employment and labour law.
1 Terms and Conditions of Employment
1.1 What are the main sources of employment law?
The main source of employment law is found in the legislation set out within various Acts of Tynwald (the Parliament of the Isle of Man), and associated secondary legislation, such as Regulations and Orders.
In addition, Codes of Practice will be issued to provide practical guidance to employers, employees and their representatives on Isle of Man employment law. Save that non-compliance with any Code will not give rise to liability, any Code of Practice issued under the Employment Act 2006 (EA 2006) will be admissible in evidence before an Employment Tribunal and any provision of the Code which appears to the Employment Tribunal to be relevant to any question arising in the proceedings is required to be taken into account in determining that question.
Other rights will be set out in contracts of employment.
1.2 What types of worker are protected by employment law? How are different types of worker distinguished?
Employees have the most extensive rights under the law. The EA 2006 defines an employee as an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment.
A contract of employment will exist where: (1) an individual agrees to provide his own work and skill in the performance of some service to his employer ('mutuality of obligation'); (2) the employer exerts control over the individual in the performance of that service; and (3) there is nothing inconsistent with an employment relationship.
An individual will be a worker where he/she is obliged to undertake, personally, work or services and does not carry on a business. The definition of a worker can be extended in limited circumstances. Unlike an employee, a worker is not protected against unfair dismissal and has no entitlement to statutory redundancy pay.
Individuals who are self-employed attract limited rights under the EA 2006.
1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?
Contracts do not have to be in writing and can be express (whether oral or in writing) or implied, save that employers have a legal obligation to provide within four weeks after the beginning of the employee's employment, written particulars of employment including: the parties to the contract; job title; employment start date; term and any continuity of service; place of work; pay rates and intervals; hours of work and holiday entitlement; sick pay; pension details; normal retirement age; notice period; and whether the contract is subject to any collective agreements.
A written statement need not contain all of the specified particulars provided that it refers the employee to some other document containing the information required.
1.4 Are any terms implied into contracts of employment?
Implied terms may be derived from various sources. A term can only be implied if:
- it is necessary to give the contract 'business efficacy';
- it represents the custom and practice in that employment and is reasonable, certain and notorious; or
- it is an inherent legal duty central to the relationship between employer and employee – for example, a woman's right to equal treatment in employment, the duty to provide a safe system of work or the duty not to undermine trust and confidence.
1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?
Employees have certain minimum legal rights, for example:
- An employer must provide an employee with more than two years' continuous employment with one weeks' notice for each complete year of continuous employment, up to a maximum of 12 weeks.
- Employers must also observe the appropriate rate of the minimum wage, being, for the majority of workers aged 25 or over, £7.50 per hour.
- Workers have an annual entitlement to four weeks' paid leave.
A number of family rights are also subject to statutory minimum entitlement, to include periods of maternity, paternity and parental leave.
1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?
Generally, on the Isle of Man, it is only the very large employers who use collective bargaining, most commonly in the public sector.
2 Employee Representation and Industrial Relations
2.1 What are the rules relating to trade union recognition?
In order for a trade union, or a trade union official or member, to act, it must first be registered by application of seven or more members to the Chief Registrar. The Chief Registrar may refuse registration if, inter alia, the applicants do not have standing, the application is not made in accordance with the legislation or the purposes of the trade union are unlawful.
Annual returns must be filed with the Chief Registrar comprising certain financial information and accounts, the trade union rules, a note of changes of offices, any report made by an auditor and any other document required by the Chief Registrar.
There is no right for trade unions to be recognised by employers; however, guidance is available detailing the circumstances in which it is considered reasonable for an employer to recognise a trade union, including where a union can demonstrate conclusively that it has at least 50% of employees in membership. If a union cannot conclusively prove membership, but 10% of employees are in membership, a ballot of employees must be held. If the ballot shows that 50% of the employees voting and 40% of those entitled to vote are in favour, it is reasonable for the employer to recognise the union.
The procedure for resolving a dispute about recognition exists via the Manx Industrial Relations Service (MIRS) and thereafter, a Court of Inquiry.
2.2 What rights do trade unions have?
Trade unions have no specific rights in relation to their dealings with employers. It will depend upon the terms of the recognition agreement between the trade union and the employer. The Code of Practice on the Recognition of Trade Unions 2001 emphasises voluntary resolution of disputes by way of an employer's agreement to the recognition of trade unions for the purpose of collective bargaining between the employer, employee and trade union. Please also see question 2.1 regarding disputes as to recognition.
Notwithstanding that a trade union is unincorporated, it is capable of making contracts; all property is vested in trustees in trust for the union; the union can sue or be sued in its own name; and any judgment against the union shall be enforceable against any property held in trust for the union.
2.3 Are there any rules governing a trade union's right to take industrial action?
Where industrial action would normally constitute a breach of contract of employment between the employee and employer, a registered trade union and its officials are immune from civil or criminal liability if the action is in contemplation or furtherance of a trade dispute. However, in order to ensure that immunity is maintained, trade unions must follow a specific procedure. This includes ensuring the rules for lawful ballots are followed, ensuring that the industrial action is supported by a majority of those voting in a ballot and making certain notifications of the intentions to the employer and MIRS.
2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?
There is no legislation in the Isle of Man requiring employers to set up works councils; nor are there any statutory provisions governing works councils set up voluntarily.
2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?
Please see question 2.4.
2.6 How do the rights of trade unions and works councils interact?
Please see question 2.4.
2.7 Are employees entitled to representation at board level?
The law affords no general statutory right to representation at board level.
3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
There exists only limited and piecemeal discrimination legislation at present in the Isle of Man, which prohibits discrimination in specific circumstances on grounds of:
- sex, marriage or civil partnership;
- sexual orientation;
- religion or belief; and
- trade union grounds.
However, the Equality Act 2017 introduces a more comprehensive set of 'protected characteristics' upon which discrimination and harassment will be unlawful: age; disability; gender reassignment; marriage and civil partnership; pregnancy/maternity; race; religion or belief; sex; and sexual orientation. The Act received Royal Assent on 18 July 2017 and is subject to a phased implementation, with all provisions anticipated to be operational by January 2020. The Equality Act 2017 (Appointed Day No. 3 and Transitional Provisions) Order 2017 sets out the implementation dates for the main equality provisions in the Equality Act 2017. Protection is currently limited to the existing listed grounds above until the full suite of protected characteristics under the Equality Act 2017 come into force; therefore, there will be further changes to come as implementation continues.
The remainder of this note addresses the law as it currently stands.
3.2 What types of discrimination are unlawful and in what circumstances?
Unlawful discrimination can be broadly categorised into three categories: direct discrimination; indirect discrimination; and victimisation.
Direct discrimination occurs where an employee is treated less favourably as a result of one of the grounds listed at question 3.1.
Indirect discrimination occurs where a standard is applied to all employees but which puts certain employees who are affected by one of the grounds at question 3.1 at a particular disadvantage, and which cannot be justified as proportionate to achieving a legitimate aim.
Victimisation occurs where an employee is treated less favourably for asserting their employment rights or for reporting or supporting another's allegations of discrimination.
In respect of discrimination on the grounds of race, sexual orientation, religion or belief and trade union grounds, the protection exists only in circumstances where there is a claim for unfair dismissal.
In respect of discrimination on the grounds of sex, marriage or civil partnership, the protection exists throughout the employment relationship, including dismissal.
3.3 Are there any defences to a discrimination claim?
In claims of sex discrimination, an employer is vicariously liable for the acts of its employees, unless it can show that it took reasonably practicable steps to prevent the employee from doing the discriminatory act.
With regards to a claim for unfair dismissal by reason of discrimination, employers may have a defence if they can show that the dismissal was justifiable.
3.4 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?
Employees can contact MIRS who provide a free and impartial conciliation service for employers and employees to try and resolve disputes in the first instance. If conciliation proves unsuccessful (and in any event), employees can bring a claim in the Employment Tribunal.
Claims can be settled at any time before they are initiated, after or during proceedings. Whilst either party can request that an Industrial Relations Officer endeavours to promote settlement of the claim without the involvement of the Employment Tribunal, the process of conciliation via MIRS is, in practice, automatic.
3.5 What remedies are available to employees in successful discrimination claims?
Successful discrimination claims usually attract compensation as a remedy and the award can be unlimited in value. In certain cases, the Employment Tribunal may also make an award for injury to feelings (maximum £5,000.00).
In circumstances where the employee has been dismissed, they may require the Employment Tribunal to make an order for reinstatement or re-engagement. Reinstatement has the effect of putting the employee in the position they would have been had they not been unfairly dismissed, including the imposition of any improved terms they would have benefitted from but for the dismissal. Re-engagement is an order on such terms as the Employment Tribunal sees fit, that the employee be engaged by the employer or its successor in either employment comparable to that which the employee was employed in prior to dismissal, or other suitable employment. Orders for reinstatement or re-engagement are rare in the Isle of Man.
3.6 Do "atypical" workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
Part-time workers have the right not to be treated less favourably (on a pro rata basis) than comparable full-time workers, unless the difference in treatment can be objectively justified.
4 Maternity and Family Leave Rights
4.1 How long does maternity leave last?
An employee is entitled to 26 weeks of ordinary maternity leave (OML), and thereafter (subject to certain conditions) is entitled to take a further 26 weeks of additional maternity leave (AML).
An employee must take a minimum of two weeks' leave after the child is born.
4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave?
Terms and conditions of employment are protected during OML, save for remuneration.
This is to be contrasted with the employee's position during AML when only certain contractual provisions remain in force, for example the employee's right to a redundancy payment, the right to receive notice, etc. During AML, there is no entitlement to contractual annual leave in excess of the statutory minimum.
Subject to certain conditions in relation to length of employment and minimum earnings, Maternity Allowance is a social security benefit that is paid to pregnant women and to women who have recently given birth, for a maximum of 39 weeks at a maximum of £179.85 a week.
4.3 What rights does a woman have upon her return to work from maternity leave?
An employee returning after OML is entitled to return to the job in which she was employed before her absence.
An employee returning after AML is entitled to return to the job in which she was employed before her absence, unless it is not reasonably practicable, in which case she is entitled to return to another job which is both suitable and appropriate for her to do in the circumstances.
It is unlawful for a woman to be subjected to any detriment by any act or deliberate failure to act by her employer by reason of the fact that she is pregnant, has given birth or has tried to take/has taken OML or AML.
4.4 Do fathers have the right to take paternity leave?
Fathers who have been in continuous employment for not less than 26 weeks, ending with the week immediately preceding the 14th week before the expected week of the child's birth, are entitled to either one or two weeks' paternity leave, to be taken within 56 days of the child's birth. Subject to certain conditions, men will be entitled to Paternity Allowance at a maximum of £179.85 a week.
4.5 Are there any other parental leave rights that employers have to observe?
Employees who adopt a child are entitled to similar rights, to ordinary and additional adoption leave, as under the maternity provisions.
An employee who has been continuously employed for a period of not less than a year and has or expects to have responsibility for a child who is entitled to receive disability living allowance, is entitled to be absent from work for the purposes of caring for that child. An employee is entitled to 18 weeks' leave in respect of any individual child who meets the above criteria, to be taken before the child's 18th birthday. No more than four weeks' leave per child may be taken in any one year.
4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants?
Employees with at least 26 weeks' continuous service have the right to request changes in their hours or place of work in order to care for dependants. The request must contain specific information and, unless approval is granted by the employer, a meeting must be held to discuss the request. Employers may only refuse such an application on the basis of specified reasons, to include the burden of additional costs, detrimental effect to ability to meet customer demand and inability to reorganise existing staff or recruit additional staff. The employee thereafter has the right to appeal any refusal by the employer.
Failure by an employer to follow the proper procedure, or where a refusal is based on incorrect facts, can result in the Employment Tribunal making a declaration ordering the employer to reconsider the decision, as well as making an award of compensation of up to eight weeks' pay (maximum £4,320.00) to the employee. A claim for discrimination could also be brought (there being no minimum service requirement).
5 Business Sales
5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer?
Where a business is transferred from one owner to another, the period of employment of an employee at the time of transfer counts as a period of employment with the transferee (i.e. the buyer). The period of continuous employment is not broken and, save for any intervening act (such as the dismissal of the employee by the transferor by reason of redundancy), employees will automatically transfer upon a change in ownership.
5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements?
A business transfer does not break the continuity of the period of employment and accordingly all statutory rights acquired by the employee remain. The transferee is not obliged by law to employ the transferring employees on the exact same terms of employment as previously enjoyed; this includes the terms of any collective agreements made. However, any change in terms will be the subject of a trial period by the employee. If the employee rejects the new contract terms, the employee is treated as redundant as of the date the original contract (with the transferor) would have ended. It will often be a matter of agreement between the parties to the business transfer transaction who is liable for the costs arising in this situation.
5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult?
There are no collective consultation rights in force in the Isle of Man.
5.4 Can employees be dismissed in connection with a business sale?
An employer must have a fair reason for any dismissal (see question 6.5) and a fair procedure must be adopted. The Redundancy Payments Act 1990 deals with the situation where there is a change of employer by a transfer of an undertaking and the transferor has terminated the employment immediately prior to the transfer. If the transferee renews the employee's contract of employment or re-engages the employee under a new contract (under the same terms previously employed), the employee is not regarded as having been dismissed by reason of redundancy and the employee retains their continuous period of employment.
5.5 Are employers free to change terms and conditions of employment in connection with a business sale?
Except for a mere change in the name of the employer, if the provisions of any new contract of employment differ (wholly or in part) from the previous contract, the employee is entitled to a four-week trial period. If, during the trial period, either side reasonably terminates the contract, unless a further renewal or re-engagement is offered, the employee will be treated as having been dismissed by reason of redundancy. During the trial period, the employer can only terminate for a reason connected with or arising out of the change.
6 Termination of Employment
6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined?
Save for where the employee is dismissed for gross misconduct, they must be given notice of termination of their employment as set out in the employment contract or, as a minimum, the statutory entitlement (see question 1.5).
6.2 Can employers require employees to serve a period of "garden leave" during their notice period when the employee remains employed but does not have to attend for work?
An employee can be required to go on "garden leave" if this right is reserved for the employer in the employment contract. During "garden leave" the employment continues during the notice period but the employee is not required to attend work. It is often used to prevent outgoing senior employees competing with the employer.
6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?
An employee has the right not to be unfairly dismissed if they have one year's continuous employment.
An employee is treated as dismissed if:
- they are dismissed by the employer subject to the relevant notice being given;
- if they are dismissed without notice as a result of breaching the employment contract; or
- if they claim constructive dismissal (following a resignation by reason of a fundamental breach of contract by the employer).
Third-party consent is not required before an employer can dismiss.
6.4 Are there any categories of employees who enjoy special protection against dismissal?
Dismissal is automatically unfair if it is: for reasons connected with family leave; for taking action in the interests of health and safety; for asserting a right to annual leave; for whistleblowing; for asserting a statutory employment right; for partaking in trade union activities; for seeking to enforce the minimum wage; for seeking flexible working; for seeking the right to be accompanied at a grievance hearing; for taking protected industrial action; on the grounds of racial or religious discrimination; or on the ground of the employee's sexual orientation. No minimum period of service is required to bring such a claim.
Special protections also apply for employees where the dismissal is: in connection with industrial action; for refusing to work on a Sunday or holiday; in respect of temporary replacement employees; or in connection with spent criminal convictions. In certain circumstances, dismissals for these reasons will always be unfair.
6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so how is compensation calculated?
The burden is on the employer to show that the dismissal was justified in the circumstances, i.e. fair, unless it was automatically unfair (see question 6.4).
A dismissal will be potentially fair if it related to the employee's conduct, capability or qualifications, if their continued employment would be illegal or if there is some other substantial reason justifying the dismissal. (In order to be fair, a fair procedure must also be followed in effecting the dismissal (see question 6.6).) If the dismissal is fair, compensation will not be payable.
If the dismissal is unfair, the employee can claim compensation, which comprises a basic award of one week's pay for each completed year of employment up to termination and a compensatory award based on the employee's loss suffered, including expenses and other benefits, up to a maximum of £56,000.00. An employee may also be entitled to an award for injury to feelings.
An employee will be made redundant if the employer has ceased or intends to cease the business, or the demand has diminished or is expected to diminish for an employee to do that kind of work. If an employee is dismissed for wholly or mainly this reason, they are entitled to a statutory redundancy payment of one week's pay up to a maximum amount of £540.00 for each complete year for which the employee has been continuously employed.
6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals?
Employers must follow a fair procedure to avoid a finding of unfair dismissal being made.
The Code of Practice on Disciplinary and Grievance Procedures 2007 provides guidance on the procedures that ought to be followed by an employer. The Employment Tribunal will take into account the provisions of the Code in establishing whether or not a dismissal was fair; however, what is fair will often depend on the circumstances of the dismissal and the individual facts. Generally speaking, an employer will be required to provide an employee with a warning as to the risk of dismissal and give them an opportunity to respond and/or take steps to improve or deal with the employer's concerns. Where the employee is dismissed, a right to appeal the decision should be given.
6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?
An employee may bring a claim in the Employment Tribunal for unfair dismissal. There are two types of unfair dismissal: (1) automatic unfair dismissal; and (2) actual and constructive unfair dismissal. A claim for automatic unfair dismissal arises where the reason for dismissal is automatically unfair. This is usually where an employee has been dismissed for exercising an employment right (see question 6.4). Otherwise, a dismissal may still be unfair if the dismissal was not for a fair reason and/or the employer did not follow a fair procedure (see questions 6.5 and 6.6).
A claim for constructive dismissal may arise where the employee resigns following a fundamental breach of the employment contract by the employer.
Except in the case of automatic unfair dismissal where no qualifying period applies, an employee must have one year's continuous employment and be under the employer's normal retirement age in order to bring a claim for unfair dismissal.
See question 6.5 for the financial remedies that the employee may be entitled to. The Employment Tribunal may also make an order for reinstatement or re-engagement of the employee.
A claim for wrongful dismissal may be brought in the Isle of Man High Court of Justice on the grounds that the dismissal is in breach of the employment contract. There is no qualifying period for a claim in the High Court. Damages recoverable are limited to contractual rights and the notice period, and unlike compensation for unfair dismissal, there is no limit on the damages that the High Court may award.
6.8 Can employers settle claims before or after they are initiated?
Claims brought can be settled both before and after commencement of such proceedings. Please also see question 3.4.
6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time?
Isle of Man employment law does not require employers to follow specific collective consultation procedures when undertaking a number of dismissals (to include redundancies). However, to avoid unfair dismissal claims, it is good practice for employers to consult with employees, employee representatives and trade unions where possible, and to adopt fair and reasonable procedures.
6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations?
Employees may enforce their rights following dismissal by bringing an unfair dismissal claim before the Employment Tribunal.
7 Protecting Business Interests Following Termination
7.1 What types of restrictive covenants are recognised?
Post-termination covenants preventing former employees: dealing with, and/or the solicitation of, the employer's clients and/or staff; or competition by the employee, are commonplace in the contracts of senior employees, as are express confidentiality clauses.
7.2 When are restrictive covenants enforceable and for what period?
A restrictive covenant will be deemed unenforceable as contrary to public policy, unless it can be justified as being reasonable to the interests of the parties and the public. Thus, a restrictive covenant will only be enforceable if:
- it protects a legitimate interest (being an advantage or asset inherent in the business); and
- it is no greater than reasonably necessary for the protection of the employer in his business.
The duration of the covenant will be key to determining the reasonableness of the same. If the period is longer than that which is reasonably necessary to protect the employer's business interests then it will fail. In determining the appropriate duration, employers should consider:
- industry practice;
- the life-cycle of the business transaction; and
- how much time the employer would properly require to replace the departing employee.
Post-termination restrictions usually last between three and 12 months.
7.3 Do employees have to be provided with financial compensation in return for covenants?
No compensation is required in return for an employee agreeing to covenants (it often being the case that the offer of and/or continued employment acts as consideration to effect a binding contract). In practice, however, where the terms of the employment contract are being changed to include more extensive restrictive covenants, for example following promotion, the employer will include some consideration for the changes, by way of incentive, i.e. an accompanying pay rise.
7.4 How are restrictive covenants enforced?
If an employer is aware or suspects that a former employee is breaching, or is intending to breach, restrictive covenants, they can issue injunctive proceedings in the High Court of Justice of the Isle of Man to prevent the former employee from acting in breach. Depending on the nature of the known or suspected breach, proceedings can either be issued with or without notice, the latter being more appropriate where the ex-employee could do serious damage if given notice of impending proceedings to restrain their actions.
A claim for damages may arise where the employer has suffered loss in consequence of the breach.
8 Data Protection and Employee Privacy
8.1 How do employee data protection rights affect the employment relationship? Can an employer transfer employee data freely to other countries?
Employers must comply with the Data Protection Act 2002 (DPA) when recruiting and employing. It applies to computerised information or information held in a structured filing system about employees or potential employees and regulates the way it is collected and processed during the recruitment process, in maintaining employee records and ongoing monitoring of employees. Employers must make clear what information they are collecting and what it will be used for and must also allow reasonable access.
The eighth data protection principle deals with the transfer of data abroad which, in summary, provides that personal data shall not be transferred outside the Isle of Man unless an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data exists. If transfers are made to countries within the European Economic Area (EEA), they are presumed to have an adequate level of protection. A number of factors must be taken into account in relation to transfers outside the EEA.
The General Data Protection Regulation (GDPR) will be in force in the Isle of Man from 24 May 2016 and is fully enforceable from 25 May 2018.
8.2 Do employees have a right to obtain copies of any personal information that is held by their employer?
In addition to having the right to find out what information is held about them, employees can make a data subject access request for copies of that information to their employers. A fee of £10.00 can be charged by the employer who must provide the information sought within 40 calendar days. Employers must supply the details in an intelligible form.
Under the GDPR any subject access request will not attract a fee and must be provided without undue delay and in any event within one month of receipt of the request, save that this timescale may be extended by a further two-month period when necessary.
8.3 Are employers entitled to carry out pre-employment checks on prospective employees (such as criminal record checks)?
Employers are entitled to carry out pre-employment checks to verify the accuracy of information provided by a prospective employee; the prospective employee should be told that this will be done and how. Given its high level of intrusiveness, the employer should exercise caution before carrying out any 'vetting' exercise, i.e. by making its own enquiries, from third parties, about the prospective employee's background or circumstances and it is recommended that vetting is limited to areas of special risk and should be aimed at obtaining specific information rather than general intelligence gathering.
Where it is appropriate for exception occupations, offices, and professions identified within the DPA, criminal record checks can be undertaken by getting a 'disclosure' from the Disclosure and Barring Service, Disclosure Scotland, Access Northern Ireland or an equivalent organisation. The level of disclosure will depend upon whether the applicant seeks to work with vulnerable people or children.
Employers cannot force prospective employers to make a subject access request to obtain the information required, with such enforced subject access being a criminal offence under the DPA.
8.4 Are employers entitled to monitor an employee's emails, telephone calls or use of an employer's computer system?
Prima facie, an employer is entitled to monitor an employee's emails, telephone calls or use of an employer's computer system if it relates to the business. It can be done for a number of reasons including, for example: as a way of monitoring the employee's performance; in order to monitor the type of business being undertaken or clients being serviced; or in order to ensure systems are working correctly.
This may, however, fall under data protection law and therefore the employer should be open and transparent about the reasons for monitoring and how it will be done and should continually monitor whether it is justified and/or can be done in a less intrusive way.
Employers should not deliberately monitor private communications or use of the computer system. However, excessive or unacceptable use of the employer's computer system for private matters may go to an employee's behaviour and work performance.
Employers should, before monitoring, carry out an 'impact assessment' in order to weigh up the benefits to the employer in monitoring against the adverse impact for the worker(s) concerned and to consider the likely consequences for those affected by the monitoring if it takes place.
Employers are recommended to have a clear policy on monitoring and personal use of its computer systems.
8.5 Can an employer control an employee's use of social media in or outside the workplace?
Employers often seek to control an employee's use of social media both internally and outside the workplace insofar as it may affect the employee's behaviour and performance and in an effort to safeguard the employer's reputation.
Whilst an employer would not in ordinary circumstances be justified in deliberately monitoring an employee's private use of social media, an employee could not reasonably expect privacy in circumstances where use of that social media made it a work issue. For example, an employee should be allowed to use social networking subject to the employee not engaging in any activity on social media that would bring the employer's reputation into disrepute. Depending upon all the circumstances, it may be that an employer would be justified in disciplining the employee on the basis of their use of social media.
In order to minimise issues, employers should have a clear policy on the use of social media in and outside the workplace which should balance the employee's right to privacy with the employer's own needs.
9 Court Practice and Procedure
9.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition?
The Employment Tribunal determines complaints arising under the employment protection legislation, for example, unfair dismissal claims, claims for minimum wage and sex discrimination complaints. The Employment Tribunal usually consists of three members: a legally qualified chairperson; a member drawn from a panel nominated by employers' organisations; and a member drawn from a panel nominated by employees' organisations. The chairperson of the Employment Tribunal may sit alone to hear and determine certain prescribed matters.
Breach of contract claims, i.e. wrongful dismissal, will often be pursued in the High Court. There is no statutory limit on any award made by the High Court and thus it can represent the more appropriate forum in high-value claims. Claims for personal injury suffered during the course of employment will also be determined in the High Court.
9.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? Does an employee have to pay a fee to submit a claim?
Conciliation is not mandatory before a claim can be filed with the Employment Tribunal. Generally, claims must be lodged within three months of the dismissal date. Unless an extension is sought, the employer then has 28 days from the date the claim is sent by the Employment Tribunal to respond. The MIRS receives copies of the claim and response forms from the Employment Tribunal and will often seek to facilitate conciliation without request by the parties and with a view to avoiding the need for a hearing.
It is the practice of the Employment Tribunal on the Isle of Man to await confirmation from MIRS that a case is unlikely to be resolved at conciliation before then listing the matter for substantive hearing.
In advance of any hearing, the parties will exchange relevant documents and witness statements.
No fees are payable upon filing a claim before the Employment Tribunal. Claims filed in the High Court will attract a fee (based on the value of the claim).
9.3 How long do employment-related complaints typically take to be decided?
A statistical report for the period ending 31 December 2016 indicates that, on average, a claim will take 28 weeks from the date of filing to the first hearing date (including time at conciliation). Using the same statistical report, a decision of the Employment Tribunal will usually take four weeks.
9.4 Is it possible to appeal against a first instance decision and if so how long do such appeals usually take?
An appeal from a decision of the Employment Tribunal may be made to the High Court, in accordance with the Rules of the High Court. The appeal must be on a point of law and must be filed within 42 days of the first instance decision. The duration of the appeal process will be dependent on a number of factors, including the Court's availability.
A decision or order of the Employment Tribunal may also be the subject of a review, undertaken by the Employment Tribunal, which may see the decision revoked or varied.
The authors would like to acknowledge Tara Cubbon, senior associate at DQ Advocates, for her assistance during the preparation of this chapter.
Originally published on the International Comparative Legal Guide
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.